Facial Recognition Technology and the Right to Privacy: A Legal Perspective

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By: Harshitha R, a student at Dayanand Sagar University,Bengaluru.

Table of Contents

Facial Recognition Technology (FRT) is transforming public surveillance and security systems, but it raises important questions about the privacy of individuals. This article examines the use of FRT in the Indian legal scenario, balancing state security needs with constitutional guarantees for individual liberty and privacy. Through judicial interpretations, statutory evolution, and comparative international practices, the article argues in favor of a regulatory framework based on constitutional values and the rule of law.

Facial Recognition Technology aims to identify or verify persons through unique facial characteristics. Albeit its contribution towards increasing crime prevention and police effectiveness, unrestricted application of FRT threatens the invasion of civil liberties. It specifically violates the inherent right of privacy under Article 21 of the Constitution by handling sensitive biometric data in the absence of appropriate legal mechanisms.

Biometric Information: Data collected from human physical characteristics—facial shape—utilized to authenticate identity via automated methods.

Data Fiduciary: An individual or organization that defines the extent, purpose, and mode of processing personal data.

Reasonable Expectation of Privacy: A legal benchmark to determine whether or not a person’s privacy ought to be safeguarded in a specific situation.

Proportionality Test: A rule applied by judges to decide whether a limitation on a fundamental right is proportionate to its proposed objective.

Facial recognition by the Delhi Police during mass protests, like the CAA and NRC protest, has attracted judicial and ethical disapproval.According to data from the Internet Freedom Foundation, more than 120 Indian public agencies use or plan to use FRT, frequently without uniform norms or regulation.There is no effective legislative framework in India for monitoring or regulating biometric surveillance devices such as FRT at present.

Case Laws

  • Justice K.S. Puttaswamy (Retd.) v. Union of India (2017)

The Supreme Court acknowledged privacy as a constitutional right under Article 21. The Court stressed concepts like informed consent, purpose limitation, and data minimization.

  • Anuradha Bhasin v. Union of India (2020)

Although largely relating to internet restrictions, the case emphasized the need to invoke the proportionality doctrine to analyze limitations on fundamental rights.

  • People’s Union for Civil Liberties v. Union of India (1997)

The Court held that telephone tapping infringes on personal privacy and that surveillance needs to be legally authorized and judicially supervised.

  • Selvi v. State of Karnataka (2010)

Methods such as narco-analysis and brain mapping, being conducted without consent, were found to violate Article 20(3) and the privacy doctrine.

  • K.S. Puttaswamy v. Union of India (Aadhaar case, 2018)

The Court maintained Aadhaar but put heavy restrictions, stating that compulsory biometric identification should comply with data protection and proportionality tests.

Constitutional Protection

Article 21 provides the right to life and liberty, now encompassing the right to privacy. Articles 14 and 19 also apply where FRT use leads to discrimination, profiling, or stifles freedom of expression and movement.

Gap in Data Regulation

While the Digital Personal Data Protection Act, 2023 lays down a base for regulation on personal data handling, it is lacking in relation to guidelines governing FRT, especially in cases of automated monitoring and algorithmic decision-making. 

  • Global Legal Landscape

Facial data is recognized as sensitive by the European Union’s GDPR and requires overt user consent. In America, San Francisco and Boston are among cities where bans on law enforcement use of FRT have been legislated.China is famous for extensive state deployment of facial surveillance with minimal legal restraints on privacy.

Issues and Challenges

  • Lack of Informed Consent

A lot of people do not know when their facial information is being captured or processed, contravening the autonomy principle.

  • Mass Surveillance and Repression

Recurrent deployment of FRT in public spaces can result in self-censorship, thus affecting free expression and speech.

  • Bias in Algorithms

Research finds FRT systems generally have gaps in accuracy, particularly for minority communities, leading to wrongful profiling and discrimination.

  • Failure of Accountability

In the absence of statutory responsibility or regulatory requirements, government agencies and private organizations can deploy FRT at whim.

  • Vulnerability of Biometric Data

Biometric details cannot be reset once compromised and are unlike passwords, creating formidable cybersecurity challenges.

While FRT has transformative power for public governance and safety, its unregulated use poses a threat to constitutional values. Any use of such technology must be tested through the threefold test established in the Puttaswamy judgment: legality, necessity, and proportionality.

Recommendations:

  1. Enact a specific law governing biometric surveillance, with particular regulations on facial recognition.
  2. Establish an independent regulatory body to oversee the use of FRT across industries.
  3. Implement transparency measures, including public consultations and disclosure mandates before introducing FRT projects.
  4. Regularly audit FRT systems to detect bias and ensure compliance with human rights standards.

FAQs

1. Is Facial Recognition Technology permitted under Indian law?
India currently does not have a standalone statute that governs the use of Facial Recognition Technology (FRT). While its application is not explicitly prohibited, any deployment must align with constitutional safeguards, particularly the Right to Privacy under Article 21.

2. Can law enforcement agencies use facial recognition without obtaining consent?
As of now, Indian law enforcement agencies often utilize FRT without the informed consent of individuals. This practice raises serious legal concerns, especially in the absence of clear judicial guidelines or statutory regulation.

3. Does the use of FRT infringe upon the Right to Privacy?
Yes, when FRT is employed without lawful backing, transparency, or individual consent, it can constitute a violation of the Right to Privacy. The Supreme Court has recognized this right as intrinsic to the right to life and liberty under Article 21.

4. Are there Indian legal provisions that specifically protect facial data?
The Digital Personal Data Protection Act, 2023, acknowledges biometric data as sensitive personal information. However, it lacks comprehensive regulations tailored to the collection, storage, and use of facial recognition data.

5. What measures are needed to effectively regulate FRT in India?
To ensure responsible use, India must establish a specialized legal regime for FRT. This should include mandatory judicial oversight, explicit consent requirements, transparency obligations, and mechanisms to audit and correct algorithmic biases.

Sources & References

  1. Supreme Court Judgments:
  1. Statutes and Legal Instruments:
  1. Policy Reports & Research:
  1. Media Articles (Factual Support):
  1. International Precedents:

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